Criminal Law FAQs

Contents

Q:

What are my rights if I am arrested?

A:

If you are arrested, you have the right to know the reason for your arrest. For the time being, you are under police custody. In return, you are given certain rights that protect you against unreasonable treatment.

In 1966 the U.S. Supreme Court decided the historic case of Miranda v. Arizona. It laid down a rule that, if you are taken into police custody, before being questioned you must be told of your Fifth Amendment right not to make any self-incriminating statements.

You must be told four things before being questioned:

You have the right to remain silent.

Anything you say can and will be used against you in a court of law.

You have the right to an attorney.

If you cannot afford an attorney, one will be appointed for you.

When there is a violation of any of these norms, any statement or confession made is presumed to be involuntary and cannot be used against any suspect in any criminal case. Any resulting statement will also be prevented from entering into evidence. At the police station, you should be given a written notice of these rights and cautioned. Under normal conditions, you cannot be held for more than 24 hours without being charged or released.

Q:

What should I do if I am questioned by the police?

A:

A person under 17 should usually not be interviewed by the police without a parent or appropriate adult present.

If you are detained, you should give your name and address; thereafter, you have the right to remain silent. If the case goes to trial, prosecutors and witnesses cannot comment on your silence.

There are clear rules that govern the way in which a police officer can question you, to prevent unfair pressure from being placed on you.

If the police are investigating a very serious offense they can, with the approval of a senior officer, delay your access to an attorney on the grounds that talking to an attorney might interfere with the evidence, alert other suspects, or hinder the recovery of stolen property.

The police can take fingerprints if they have reason to suspect your involvement in a crime. They are also allowed to take photographs but cannot force you to have your picture taken against your will.

Q:

What is bail?

A:

If the police do not release you within 24 hours, you must be brought before a magistrate (a type of judge) who will decide whether you can be released on bail or on your own recognizance (i.e., without bail). Bail cannot be given to anyone charged with certain offenses or for violating the terms and conditions of probation.

Q:

What is search and seizure?

A:

The Fourth Amendment to the U.S. Constitution protects personal privacy and every citizen’s right to be free from unreasonable government intrusion into their persons, homes, businesses, and property.

Law enforcement officers may interfere with your Fourth Amendment rights only under limited circumstances and through specific methods. The Fourth Amendment’s search and seizure protections extend to:

A law enforcement officer’s physical apprehension or seizure of a person, by way of a stop or arrest; and

Police searches of places and items in which an individual has a legitimate expectation of privacy — e.g., your person, clothing, purse, luggage, vehicle, house, apartment, hotel room, and place of business.

Unlawfully seized items cannot be used as evidence in criminal cases. The degree of protection available in a particular case depends on the nature of the detention or arrest, the characteristics of the place searched, and the circumstances under which the search takes place.

In most instances, a police officer may not search or seize an individual or his or her property unless the officer has a valid search warrant, a valid arrest warrant, or a belief rising to the level of “probable cause” that an individual has committed a crime. Violation of an individual’s constitutional rights under the Fourth Amendment will nullify the effect of a search or seizure, and any evidence derived from that search or seizure will almost certainly be kept out of any criminal case against the person whose rights were violated.

As with any facet of the law, there are exceptions to this rule. For example, an officer can use the “plain sight” rule to investigate any area that he can see without moving any obstructions or from where he were to stand in the normal course of performing his duties.

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The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship.